Friday, October 31, 2014
ElderLawGuy Jeff Marshall has an interesting blog post, inspired by a recent visit to his doctor where he was asked whether he wanted a "high dose" flu shot. He hadn't heard of high-dose shots. He demonstrates the same careful approach to this personal decision -- lots of research! -- that he uses with legal analysis for his clients.
But, along the same line, I wonder whether we should be asking related questions of long-term care workers and agencies. In Arizona, where my parents (both age 89) live, I learned that many home-care agencies (at least those not "Medicare-Certified") do not provide their employees with such vaccinations, and indeed such workers are often treated by their agencies as independent contractors, so they may be without employer-sponsored health insurance coverage. Such workers struggle to make ends meet -- and flu shots can seem like a luxury. But those same workers probably need to be immunized to better protect their clients. It may be up to the seniors themselves to be aware of this issue, and to pay for and make arrangements for their aides to get flu shots (of any strength).
What are the rules and practices in your state for immunization of in-home care-providers for the elderly?
I often struggle with how far to go in asking for government regulation of risk-factors; but at a minimum, it seems like families need to make their own cost-benefit analysis on immunization of home-aides.
A week ago, CBS's Sixty Minutes interviewed Barbara Mancini, the Pennsylvania nurse accused of helping her elderly father to kill himself with an overdose of morphine. The charges were eventually dismissed by the court, concluding there was insufficient admissible evidence of the charged crime. The transcript of the program, titled "Ending Life," is now available; the daughter's account of her own actions should provide a basis for classroom discussion of several key legal and non-legal issues, including whether "medical orders" are needed to make so-called living wills effective, and the proper roles for hospice workers.
We have blogged on a number of occasions about whether some folks will be able to afford to retire, or have to delay retirement. A new report, Which Employees are Delaying Retirement and Why? was released by Towers Watson in September 2014. The report notes a certain “type” who is delaying retirement: less healthy, highly stressed and disengaged from their jobs” with financial necessity as the catalyst for delay. Interestingly, the report notes the type of plan also affects the timing of retirement, with “defined benefit (DB) plan participants retiring earlier than employees with only defined contribution (DC) plans, even where counter influences exist.” The report ties together some interesting trends and notes that delayed retirement isn’t just a passing fad
The number of workers planning to delay retirement is growing. Expected retirement delays are reflected in changes to workers’ planned retirement ages and/or retirement dates. In 2009, just over one-third of full-time employees planned to postpone retirement versus 43% in 2013, a nine percentage point jump … Conversely, a smaller group (12%) is planning to retire earlier — up from 5% in 2011. Perhaps the recent uptick in equity markets has improved affordability prospects for some…. Nearly three-quarters of those delaying retirement are planning a delay of three or more years … As a result, expected retirement ages are rising.
The article discusses the correlation between saving, the type of retirement plan and retirement timing and provides a profile of those delaying retirement. Charts that accompany the report provide great graphical information. A pdf of the report is available here
Thursday, October 30, 2014
According to an October 22, 2014 story from the Pew Research Center, Americans of all ages divided over doctor-assisted suicide laws. After referencing the story of Brittany Maynard and the recently released IOM report on Dying in America, the story mentions a study that Pew released on November 21, 2013 on Americans’ views on end of life care.
The October 22, 2014 story notes that last year’s survey found that an overwhelming percentage (66%) of Americans thought that folks had the right to die certain cases. There is less agreement on physician-aided dying, though it is close to even (47% favoring, 49% opposing). The article mentions that there is not that much of a variance based on age, but more so based on “racial and ethnic group, religious group and political ideology.” There is some variation based on age on other issues, however. For example, on the topic of continued treatment in the face of disease without hope for improvement, more younger people wanted their doctors to do all that could be done to keep them alive. (“53% of those ages 18-29 say this, compared with about a quarter (24%) of those ages 50 and older”). As far as decision-making at the end of life, about 25% of those under the age of 30 responded that they’ve considerd this a lot while a little over 40% have not really though much about it, if at all. This compares to the 65+ generation with 47% of those reporting that they’ve given the matter a lot of thought and 32% some thought.
Our friends Stetson Law Professor Roberta Flowers and Pennsylvania Elder Law Attorney Amos Goodall have joined forces in writing a very interesting article, "In Fear of Suits: The Attorney's Role in Financial Exploitation" published in the Fall 2014 issue of the NAELA Journal.
To examine the potential for attorneys to facilitate or hinder financial abuse of elders, they take a close look at key players in the Brooke Astor case. For example, they discuss the elderly philanthropist's purported execution of three codicils, pointing out that each document was "drafted by superbly educated, well-respected and even renowned 'establishment' lawyers." The authors ask whether more could have been done by these lawyers to protect Astor from the machinations of two other individuals, her son "Marshall" and Attorney Morrissey, both of whom were eventually convicted, but only after Mrs. Astor's death.
To provide insight into this key question, Flowers and Goodall take a step back from specific facts of the Astor case, to discuss key ABA Model Rules, including Rule 1.2 (Protection of Client's Objectives), Rule 1.7 (Protecting Clients from Divided Loyalties), Rule 1.14 (Protecting Clients with Diminished Capacity) and Rule 4.2 (Protecting Clients Who Are Represented from Overreaching).
I can see this article providing a great platform for discussion, both among law students and practicing attorneys.
Wednesday, October 29, 2014
President Park Geun-hye called Tuesday for efforts to ensure a bill meant to reform the pension system for civil servants will pass the parliament by the end of this year. "We will pass onto our future generations a big burden that will not be bearable and deal a devastating blow to the state finances ... if the reform is delayed again," Park said in a Cabinet meeting. South Korea has delayed fundamentally addressing the issue of pensions for civil servants, despite being aware for decades that the current pension plan is not sustainable. Park made her case for pension reform, saying it would be a difficult and painful process but would only get worse if delayed further. Her comments came a day after her ruling Saenuri Party unveiled a set of measures to reform the pension program for civil servants in a way that reduces the government's growing pension deficit. The measures call for, among other things, a delay in eligibility for public servants' pension to 65 from 60, starting in 2031, and raising the proportion of contributions from 7 percent of salary to 10 percent.
Dementia is the leading cause of death for women in England and Wales, official figures show. The disease now kills more than three times as many women as breast cancer and thousands more than either heart attacks or stroke. Analysts say the rising numbers may be because doctors are becoming more aware of the disease and recording it on death certificates more frequently. Coronary heart disease remains the leading cause of death in men. For males, dementia is the third most common cause of death. The condition can be recorded as the sole cause of death, but is frequently found as an underlying condition. Many people with dementia ultimately die from pneumonia. The data, published by the Office for National Statistics (ONS) showed more than half a million people died in England and Wales in 2013.
LeadingAge is an organization representing "nonprofit" long-term care providers, including operators of CCRCs, home health agencies, day-care centers, nursing homes, Section 8 public housing, and similar companies. During the recent national meeting of LeadingAge in Nashville, one topic was an "alarming trend" in the growth of the for-profit long-term care sector. As reported in McKnight's, during the conference LeadingAge Chairman David Gehm warned the audience that the for-profit sector is "growing nearly eight times as fast as the nonprofoit sector ... citing figures from investment bank Ziegler." Gehm is reported as pointing to reduced access to affordable capital as as one factor contributing to the pressures on the nonprofit industry. He argued a "vibrant nonprofit long-term care sector benefits the whole country."
On the consumer-cost side of the equation, it does seem that what was once a price differential between the two sectors for cost of care is narrowing. Nonetheless, historically there has been a certain additional trustw0rthiness factor associated with monprofit providers that often gave them an edge in the marketplace. But is that still true?
As my students in my Nonprofit Organizations class come to realize, there is often a difference between "charitable" care and "nonprofit" care. But is the difference between nonprofit care and for-profit care becoming harder to evaluate?
Last year we wrote about Stanford University's first Design Challenge and the winner's colorful "EatWell" table setting, deigned to help those with cognitive deficits to eat without assistance. Last year the competition attracted 52 teams from 15 countries.
Stanford's Center on Longevity recently announced its 2014-15 Design Challenge, focusing on mobility issues for older adults. Entries are due December 5. One goal is to reach more students, encouraging greater awareness of aging issues and the values of intergenerational collaboration.
Hat tip to my colleague Professor Laurel Terry, who shared the latest news from her son's university.
Tuesday, October 28, 2014
Those of you watching the planning of the 2015 White House Conference on Aging will be interested in the most recent blog post from WHCOA executive director, Nora Super. Director Super mentions in her blog post that some “common threads” are emerging from her community conversations. Those threads include retirement security, healthy aging, community supports and services, and preventing abuse, neglect and exploitation. “These four issues will provide the focus areas for the 2015 White House Conference on Aging. They are intended to support the dignity, independence, and quality of life of older Americans at a time when we’re seeing a huge surge in the number of older adults.” The entire post can be read here.
As anyone knows who has faced a diagnosis of Alzheimer's or other dementia in their own family, it can be devastating news. I remember asking the doctor whether there was some "behavioral" training or program -- in addition to or as a substitute for medication -- that might help my own family member preserve, if not improve, existing cognition. The answer at that time was a slow, sad shake of the doctor's head.
That response is why many will be pleased to hear that the Alzheimer's Association supports research into non-drug therapies. The latest grant funding for four projects, announced in Chicago last week, includes:
- A study of the use of "exercise or cognitive stimulation, or a combination of the two, for lowering the risk of cognitive decline and dementia in older adults." $247k to Dr. Amy Jack at the University of California, San Diego.
- Evaluation of the impact of aerobic interval training regimens on the brain and thinking abilities of people with type 2 diabetes. $250k to Dr. Gail Musen at Joslin Diabetes Center in Boston.
- A study of "Skill-Building Through Task-Oriented Motor Practice (STOMP) for improving daily life skills and delaying decline in people" with dementia. "STOMP utilizes repetitive therapy and a learning technique that focuses on immediate correct steps instead of trial-and-error to strengthen and preserve memory for completing daily living tasks." $100k to Dr. Carrie Ciro at University of Oklahoma Health Sciences.
For more information on Alzheimer's Association research and results, see here and here. I can say that that I'm glad to see studies of regular movement or exercise. In my own family, I saw some stabilization of cognition coincide with greater activity. Being on one level -- with easy access to the outdoors and lots of room and safe areas to walk -- has proven to be very helpful for my father.
The ABA Journal online posted a story on October 22, 2014 As fewer law grads become lawyers, the profession shows its age. Perhaps not such a surprise to those of us in Elder Law World, but the legal profession is aging, just like everything else, but maybe not for the reasons we think:
In 1980, 36 percent of the nation’s licensed lawyers were under age 35, compared to just 13 percent in this age group in 2005. The figures come from The Lawyer Statistical Report, which is based on data from Martindale-Hubbell and compiled by the American Bar Foundation. Meanwhile, the median lawyer age also increased from 39 in 1980 to 49 in 2005.
The article discusses the reasons for the shrinking of the number of younger lawyers. Quoting IU Law professor William Henderson, it's "possible the decline in younger lawyers is because women, who are going to law school in increasing numbers, are more likely to drop out of the profession to raise children.." but "this is only a partial explanation, since the woman lawyers would likely be dropping out of the profession both before and after age 35. But the percentage of lawyers aged 35 to 64 is increasing." Henderson goes on to suggest that "[t]he most likely explanation ... is that the rate of absorption of law grads into the licensed bar is steadily declining over time."
Although not the focus of the article, perhaps as well as fewer younger attorneys entering into the "typical" practice of law, maybe the more experienced lawyers are practicing far more years than in the past. But that's a post for another day.
The Annual Meeting of the Gerontological Society of America (GSA) will take place on November 5-9 in Washington D.C., bringing together more than 4,000 researchers in an interdisciplinary setting to examine cutting edge issues in science, health care, social care, and governance, including related legal issues. The conference draws many from around the world, including my friend Roger O'Sullivan from the Centre for Ageing Research and Development in Ireland (CARDI). There are more than 400 sessions to choose from!
By the way, GSA has a very useful Facebook page, chock full of links to latest research and scientific developments.
Monday, October 27, 2014
Has anyone else noticed an uptick in eye-catching articles from the Washington Post? Maybe it it just that they are writing about things I'm interested in, but I also notice that I'm getting more recommendations from readers, based on Post pieces. Nice to see this resurgence in a traditional news source.
Along that line, the Washington Post has been running a series on the "Business of Dying," looking at hospice and finding lots of areas for concern. Sunday's piece focuses on the inconsistencies among hospice providers, with gaps in services that may be hard for families to respond to, especially in the midst of end-of-life trauma.
The Washington Post has now published on line an interactive "Consumer Guide to Hospice," co- written by Dan Keating and Shelly Tan. You can search by state or by provider -- and it is free!
Last week I was part of a panel hosted by the National Continuing Care Residents' Association (NaCCRA) in Nashville, a component of the larger (much larger!) annual meeting of LeadingAge. The theme for the panel was "Resident Engagement in Continuing Care Life" and for my part of the panel, I used an interesting Third Circuit bankruptcy court decision, In re Lemington Home for the Aged, to discuss whether residents of financially troubled CCRCs should be treated as entitled to enforce specific fiduciary duties owed by the CCRC owners to creditors generally, even unsecured creditors, fiduciary duties that may give rise to a direct cause of action connected to "deepening insolvency."
Jennifer Young (pictured on the left), a CCRC resident, talked about what it is like to "be" an unsecured creditor in a CCRC's Chapter 11 bankruptcy court proceeding. Her explanation of how creditors' committees operate in bankruptcy court (including how they hire legal counsel and how that counsel is paid out of the Debtor's estate) was both practical and illuminating. The closing speaker on the panel was Jack Cumming (below left). Jack's has deep experience as an actuary and a CCRC resident. He noted the disconnect between the intentions of providers and the realities faced by residents and called for stronger accountability in investment of resident fees. I always come away from my time with Jack with lots to think about. Our moderator was NaCCRA president Daniel Seeger (right), from Pennswood Village in Pennsylvania.
In my final comments, I reminded our audience that even though our panel was focusing on "problems" with certain CCRC operations, including some multi-site facilities, many (indeed most) CCRCs are on sound financial footing, especially as occupancy numbers rebound in several regions of the country. Both panelists and audience members emphasized, however, that for CCRCs to be able to attract new residents, the responsibility of the CCRC industry must improve. For more on these financial points, go to NaCCRA's great educational website, that includes both text and videos, here.
Interestingly, during the LeadingAge programming that began on Saturday, October 18 and continued through October 22, I was hearing a lot about a potentially major shift in the long-term housing and service market. Some of the largest attendance was for deep-dive sessions on new service models for "Continuing Care at Home," sometimes shortened to CCAH or CCaH. CCAH is often seen as a way for more traditional CCRCs to broaden their client base, particularly in the face of occupancy challenges that began with the financial crisis of 2008-2010.
As a corollary of this observation about market change, one of the topics under debate within the leadership of LeadingAge is whether Continuing Care Retirement Communities need a new name, and I can see movement to adopt a name that aligns better with the larger menu of non-facility based services that many providers are seeking to offer.
Of course, as a law professor, I wonder what these market changes mean for oversight or regulation of new models. Not all states are keeping up with the changes in the Continuing Care industry, and name changes may complicate or obscure the most important regulatory questions.
The National Senior Citizens Law Center (NSCLC) announced its next free webinar, to be held on Wednesday November 5, 2014 from 2-3 edt. This one will focus on Medicaid Long-Term Services and Supports - Appeals 101. According to the notice about the webinar
This session will provide an introduction to the governing federal regulations, and will examine how various states and managed care organizations are handling notices, appeals, and fair hearings. Real-life examples from Florida, Kansas and New Jersey will be used to illustrate promising practices as well as areas where beneficiary due process rights are at risk.
Click here to register. And did we mention, it’s free!
Sunday, October 26, 2014
As regular readers of the Elder Law Prof Blog may recognize, I reside and work squarely in a zone where "filial support claims" are more than just theoretical propositions. Pennsylvania continues to be Ground Zero for modern complications arising from use of a Colonial era law that permits adult children to be held liable for the cost of an indigent parent's long-term care.
The latest example is In re Skinner, 2014 WL 5033258, decided by Bankruptcy Judge Madeline Coleman in the Eastern District of Pennsylvania on October 8, 2014.
The issue is whether one sibling can prevent another sibling from "discharging" any obligation to pay an assisted living facility for their mother's care. Both brothers were sued by the facility, resulting in a default judgment against one brother (Thomas) for $32,225, who in turn sought discharge of that debt in bankruptcy court. Brother William, probably facing the prospect of picking up the full tab for his defaulting brother, initiated an adversary proceeding, seeking to prevent the discharge. The court concludes that Brother William "lacks standing" to prevent Brother Thomas' discharge of the debt to the assisted living facility.
In dismissing Brother William's claim, the Bankruptcy Judge addresses both the Uniform Fraudulent Transfer Act and Pennsylvania's filial support law. According to the opinion, Brother William alleges that Thomas used a Power of Attorney executed by their mother in 2007, to access her bank accounts in a "scheme [with his wife] to use the Mother's assets, including her interest in long-term care benefits, to fund approximately $85,000 of their personal expenses." However, the court concludes that even accepting the truth of allegations that "suggest that the Mother was injured by the [Thomas'] conduct, that conduct was directed at the Mother and her property. The conduct was not directed at [William]." The Bankruptcy Court also rejected any theory of "derivative standing."
October 26, 2014 in Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Cases, Health Care/Long Term Care, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Thursday, October 23, 2014
Via The Telegraph:
Doctors and nurses who help severely disabled or terminally ill people to take their own lives are less likely to face criminal charges after Britain's most senior prosecutor yesterday amended guidelines on assisted suicide. Until now all health care professionals faced a greater chance than others of being prosecuted for helping people to die because of the trust their patients placed in them. Alison Saunders, the Director of Public Prosecutions, said this special deterrent would now only apply to those directly involved in a person's care. Anti–euthanasia campaigners accused Ms Saunders of "decriminalising" assisted suicide by health care professionals "at a stroke of her pen". Dr Michael Irwin, the former GP nicknamed "Dr Death" for helping several people kill themselves, said the change was a "wonderful softening" that would "make life easier" for people like him. He said he and many other retired doctors would now feel able to help people travel to Switzerland's Dignitas centre "without worrying". But campaigners for legalisation of assisted dying said the amendment did not go far enough. Ms Saunders insisted the change was simply a clarification and would not offer anyone "immunity" against prosecution for assisted suicide, which is punishable by up to 14 years in jail. Guidelines published by the former DPP, Sir Keir Starmer, in 2010 say people acting "wholly out of compassion" could avoid prosecution for helping people end their lives. But the guidelines also list circumstances that would make prosecution more likely. They include where someone is "acting in his or her capacity" as a medical doctor.
Source/more: The Telegraph
Wednesday, October 22, 2014
I've heard about the backlog for SSD appeals, but I had no idea how much of a backlog exists until I read the story in the October 19, 2014 Washington Post. Waiting on a Social Security disability appeal? Get in line — a very long line brings a new perspective on waiting lists. The story reports that there are 990,399 (you read that right, 990,399) SSD appeals waiting for ALJ hearings. We have been hearing a lot about the backlog with the VA (526,000 according to the story) so why haven't we heard about the SSDI case backlog? Want to know how long it takes for a backlog of almost one million cases to occur? According to the Post story, the backlog has been going on since President Ford's administration, but a significant increase occurred between 2008-20014. Why did this occur? "[T]he system became, in effect, too big to fix: Reforms were hugely expensive and so logistically complicated that they often stalled, unfinished. What’s left now is an office that costs taxpayers billions and still forces applicants to wait more than a year — often, without a paycheck — before delivering an answer about their benefits." As well, factor in the "Great Recession" and Boomers. The article also mentions budget cuts to SSA as well as the government shutdown in 2013.
A sad irony-the story quotes one of the ALJs in S. Florida who had 2 claimants die before their appeals were heard, but the ALJ still had to hear the case of one, because if the decedent were determined to have been disabled, then the decedent's surviving child might receive benefits.
Although SSD waiting lists outnumber both VA and Patents, according to the story, the wait time to decision is shorter than that for the VA and Patent office. The SSA ALJs "are the moral centerpiece of this system: a symbol that the government intends to apply the old American ideal of due process before the law to the vast new caseloads of the American welfare state. They are also the system’s biggest problem — a 40-year-old clog in the pipe." A law prof at GW, Richard Pierce, takes the position "that the government should eliminate the judges altogether and just let the bureaucrats with the paperwork decide. [Professor Pierce] said that the main thing these hearings bring to the process — that face-to-face interaction between judges and applicants — often adds only pathos, not useful information."
A push to shrink the backload resulted in a drop of both cases and wait time in 2010 but a review of the decisions noted an uptick in the award of benefits. It would seem, from reading this article, that part of the problem is outdated requirements and resources available to the judges (or lack thereof). SSA has lessened the pressure on the ALJs to some extent, so now the ALJs are "limited ... to 720 cases a year and [SSA] imposed new checks to make sure the “yes” decisions are as well thought-out as the 'noes.'" The uptick in benefits awards has dropped, with the award of benefits at 44%. Despite the fact that SSSA has hired more ALJs, the backlog is pushing one million. The Post reports that there were an additional 13,000 added in the first two weeks of October! The story concludes by noting that the backlog isn't limited to just the ALJs. The Appeals Council also has a backlog: "There are 150,383 people waiting for an Appeals Council decision. The average wait there is 374 days."